Thursday, June 28, 2007

The Most Powerful Man in America

Most Americans have no idea who Anthony Kennedy is, although he may now be the most powerful man in the country. Thanks to a timely re-staffing of the Supreme Court, most notably the replacing of Justice Sandra Day O'Connor with Samuel Alito, Justice Kennedy has become the pivotal swing vote on the bench. As such he is the new king maker, the one who decides who lives and who dies. Now might be time to get familiar with him.

Justice Kennedy was born in 1936 in Sacramento, California. He graduated from Harvard Law School 1961. A life long Republican, he was nominated by President Reagan in 1987 after Robert Bork was found to be too conservative. Kennedy was confirmed unanimously and has since shown a mix of conservative and libertarian philosophies while on the Supreme Court. He is known for being strong on gay rights, but has joined with the court favoring capital punishment, limiting abortion rights, and invalidating affirmative action programs.

Recently, Kennedy has drawn considerable attention from the left for siding with the four more conservative Justices (Scalia, Thomas, Roberts, and Alito) as the key vote in 5-4 decisions. But he has also infuriated the right for his left-leaning votes over the years. Most notably he affirmed the precedent set by Roe v Wade in the 1992 case of Planned Parenthood vs Casey. In 2003 James Dobson, director of the evangelical Focus on the Family, once called Kennedy "the most dangerous man in America."

In light of Kennedy's recent rulings many on the left would now make the same claim. Kennedy recently cast the deciding vote against the so-called "partial birth abortion" procedure, voted against a death row inmate seeking appeal, voted against a free speech issue involving a high school student, and voted in-favor of allowing more corporate money into campaign finance. Today, in another 5 to 4 vote, Kennedy came down against school plans for greater racial diversity.

Altogether Kennedy has joined the conservative side of the court more times than not including the famous Bush v Gore case of 2000, and on affirmative action rulings, and limiting congressional power. He has also sided with the liberal Justices on numerous civil rights cases including Lawrence v Texas which struck down the criminal prohibition of "homosexual sodomy" in Texas, Roper v Simons which made it illegal to impose capital punishment on minors, Gonzalez v Oregon which limited the government's ability to interfere with a state's decision for assisted suicide, and Hamdan v. Rumsfeld which blocked the governments use of military tribunals for detainees.

Kennedy is probably most notorious for citing international law in his decisions, a practice that gives many liberals hope considering most Democratic countries have more progressive liberties than the United States. For example, Kennedy used international law when reaching his decision in the Lawrence case and wrote, "Authoritative in all countries that were members of the Council of Europe the decision is at odds with the premise in Bowers [a previous Supreme Court precedent] that the claim put forward was insubstantial to our Western civilization."

But a penchant for international citation may be cold comfort to many progressives who understand fully that Kennedy was nominated by a conservative president and has largely played according to predictions, joining the right-wing of the court in a substantial number of cases. His power has been enhanced even more since the 2004 elections and the re-tooling of the Court. As the all-important sing vote he is to the right of where Justice O'Connor once stood.